2020 volume 2 p 308

• Published date: 14 April 2020
• Date: 14 April 2020

TSAR 2020 . 2 [ISSN 0257 – 7747]

308

Aantekening

OVERVIEW OF CONSTITUTIONAL COURT JUDGMENTS ON THE

BILL OF RIGHTS – 2019*

This ove rview covers t he following:

1 Equalit y

2 Dignit y

3 Personal freedom and sec urity

4 Privacy

5 Freedom of expression

6 Children’s rights

7 Education

8 Access to courts

9 Criminal pro cedure

10 Interpretation

1 Equality

1.1 Differentiation under section 9(1) of the constitution

Section 9(1) of the constitution provides that everyone is equal before the law and

has the right to equ al protection and benet of the law. In S v S the constitutional

court had to pronou nce on the constitutionalit y of section 16(3) of the Superior

Courts Act 10 of 2013 and rule 43 of the Uniform Rules of Court, as these provi sions

allegedly infri nge various constitutional r ights of litigants in divorce proceedings,

including equality before the law (s 9(1)), the best interest of children (s 28) and

access to courts (s 34) (2019 6 SA 1 (CC); the latter rights are discussed in the

paragraphs below). Section 16(3) of the Superior Courts Act and rule 43 of the

Uniform Rules of Court preclude litigants in divorce proceedings f rom appealing

an interim order made in terms of rule 43 regarding interim maintenance of a

spouse pendente lite, custody of children, costs of litigation, and interim access to

children. Mr S, the applicant in the case, contended that these provisions infringed

the rights of litigants in d ivorce proceedings, since it differentiates bet ween litigants

by precluding litigants in divorce proceedings from appealing an order in terms of

rule 43, while other litigants are afforded the right to appeal against other orders

(par 37). The constitutional court however pointed out that only dif ferentiation that

is irrational amounts to an unconstitutional violation of the right to equality ( par

37). The reason for the differentiation is t herefore the decisive factor.

Referring to its earlier judgment in S v Rens (1996 2 BCLR 155 (CC) (par 29)),

the constitutional cou rt stated that equality before the law doe s not require the same

appeal procedures, as long as the litigants in the particular case are subject to the

* This overview is dedicated to my esteemed colleague and friend, Professor IM Rautenbach, who

diligently and without fail produced the overview of constitutional court judgments on the bill of rights

since 2006. His thorough analysis and critical evaluation of the judgments have made an invaluable

contribution to South African constitutional rights jurisprudence over the years. It is a legacy to which

I can only hope to aspire.

2020 TSAR 308

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